Upon Petition for Rehearing.
Gary, P. J.On the trial the deposition of Stevens, the cashier of the plaintiff, was read in evidence. He testified that the letter of credit was delivered to him by Moss as security for the note Moss made to the bank. Moss and another witness testified that the letter of credit was not delivered until three days afterward, and then only as security for a wholly independent accommodation. On this state of the evidence the finding of the court, without a jury, in favor of the defendant, could not be disturbed, nor, if the testimony of the witnesses for the defendant is true, could the letter of credit be held by the bank as security for the note upon the ground that while it was in the possession of the bank an extension of the time of payment of the note was agreed upon, nor can the bank claim a new trial on the ground of sur-prise. It may not speculate upon the chance of a finding in its favor on the evidence as it stood, and, when disappointed, ask an opportunity to supply the further evidence it knew it needed on the first trial, and which it did not then ask the court to give, as the court might well have done—time to procure. A rehearing of the case would be useless to the appellants.
This court preferred, in its former opinion, to put the case upon a point which might possibly make the opinion of some future use upon the construction of a written instrument.
Whether a declaration states a case upon which a recovery can be had or not is always an original question in a court of review, without regard to demurrers and motions in arrest below, if presented by the assignment of errors. Stearns v. Cope, 109 Ill. 340; Teal v. Walker, 111 U. S. 242.
In Chicago v. Turner, 80 Ill. 419, it is within the personal knowledge of one member of this court, though the report does not show the fact, that a demurrer to the declaration had been overruled, and yet because it showed no cause of action the court erred in giving and refusing instructions. The statute makes the sufficiency of any court in a declaration a j question that may be raised on the trial. Practice Act, Sec. 50; Frink v. Schroyer, 18 Ill. 416. It hardly needs to be stated that a court trying a cause without a jury should act upon principles which it would direct a jury to follow.
Rehearing denied.